The Great Green Row-Back
Prime minister Rishi Sunak announced on 20 September a u-turn on a series of key green commitments, claiming they will worsen the cost of living crisis.
But what areas may be affected for agri and food and drink companies?
- Data Transparency - Voluntary
The role of the the Food Data Transparency Partnership (FDTP) and whether data reporting by food businesses should be mandatory or voluntary has also been widely reported in the last few weeks.
The plan around the setting up of the Food Data Transparency Partnership between government bodies, private organisations, charities and food business was to make it mandatory for large businesses to publicly report against a consistent set of health metrics and explore a similar approach to sustainability and animal welfare. This was to be achieved via a system of mandatory measurement to be used by industry to measure its impact across three areas: public health (including HFSS and obesity), animal welfare and supply chain emissions. A fourth working group was to be charged with ensuring there is transparent reporting and developing the data to back it up.
The Westminster Food Forum on transparency of data in the food supply and the Food Data Transparency Partnership took place on Tuesday 5th September. At this event Sean Povey, deputy director, diet, obesity and healthy behaviours at the Department of Health and Social Care (DHSC), updated attendees that reporting will now only be required on a voluntary basis
Jessica Burt of Mills & Reeve also spoke at the Westminster Forum event and referenced the importance that a clear proportionate and achievable objective should underline any additional responsibility before it is placed on business.
The voluntary provision of data has been reported this week in the Grocer as already committed to by a number of larger food businesses and retailers, including IGD, supermarkets Tesco, Sainsbury’s and Morrisons, and suppliers such as Nestlé, Mars and General Mills. The out-of-home sector is reported as including Compass Group, Mitchells & Butlers, KFC and Deliveroo.
The exact metrics for sales data are not finalised but are likely to include the salt, sugar and fat content of products.
A future second stage may see data communicated to the public via a new system of on-pack labelling, which will be used to either replace or supplement existing traffic light labels.
The provision of the voluntary traffic light labels involved detailed consultation and it is hoped that any voluntary scheme to supplement or replace this does not cause confusion for consumers.
As referenced by Jessica Burt at the Westminster event, it can be easy to lose track of the 'why' in the rush to demand food businesses provide more and more information. The provision of a clear structure and goals that companies may then wish to signpost their compliance to as a foundation is vital.
- Emissions Reporting - Mandatory
It is conversely reported that the reporting of Scope 3 emissions will still be mandatory for large food and drink companies. This has left questions over how that will be defined ie the size of companies affected, whether there may be voluntary reporting by smaller businesses and what metrics and which proprietary systems are to be used.
Clearly one agreed system within industry, supported across business, would add a great deal of clarity and this should be the foundation before any mandatory system may be introduced.
- Food Waste Reporting - Voluntary
Defra has stepped back from proposals for mandatory reporting on food waste and has “no plans” for mandatory targets for prevention and will be keeping food waste reporting on a voluntary basis due to the perceived costs to businesses and the impact on food prices.
A campaign group Feedback has threatened the Government with judicial review over its decision not to make food waste reporting mandatory for large and medium sized businesses.
A Defra spokesperson said: “A regulatory approach would increase costs for businesses and the public sector, which might be passed on to consumers. We therefore believe the right approach at this time is to enhance the existing voluntary approach to food waste reporting.”
Critics of the move have highlighted the potential for impact on other schemes such as Extended Producer Responsibility EPR and the Deposit Return Scheme DRS.
We will shortly be seeing the Single Use Plastic Ban coming into force on 1 October however as illustrated within our previous update: Single Use Plastics Ban - What is covered? - Mills & Reeve (mills-reeve.com) The variety of exclusions for 'packaging' mean that the vast majority of takeaways, delis and filled at point of sale hospitality venues will not be affected. Nevertheless, a voluntary approach such as the Plastic Pact UK, led by Wrap, The UK Plastics Pact | WRAP signed by a number of restaurants may have an equal if not greater effect.
Similarly, it is important that the overall objective, rather than the short term target such as blanket bans, is kept in mind; whereby environmental objectives should be measured and achievable.
The provision of meat tax has been ruled out. This tax has not been previously consulted on and has been referenced as a ‘non-existent government policy’.
However the ruling out of additional ‘taxes’ should be broadly welcomed by those parts of the food sector that may fall within the high in fat, salt or sugar bracket or are perceived as less environmentally friendly.
- Logistics – Ban on new diesel and petrol vehicles delayed
The ban on sales of new diesel and petrol cars has been postponed from 2030 to 2035.
In order to ensure this implementation it would be essential that an appropriate infrastructure to support the supply chain for food businesses including charging stations for HGVs and other delivery vehicles across the country, and an overall better infrastructure network that can fully support a total transition to electric powered transportation and storage of goods.
The logistics sector may therefore be subject to further uncertainty for investment
Unit Pricing – CMA – Which?
Which? has investigated supermarket loyalty discounts at Tesco and Sainsburys and reported their findings to the Competition and Markets Authority (CMA.) Which? is now calling on both retailers to make sure every non-member price is genuinely reflected so that savings are meaningful. Which? uncovers dodgy-looking supermarket loyalty discounts - Which? News
The allegation is that loyalty offers have been used to give the impression that the savings are better than they really are.
Which? tracked the pricing history of dozens of member-only offers at at Tesco and Sainsbury's over six months, looked at 141 Clubcard and Nectar Price offers promoted online at the end of June.
It found that almost a third (29%) of the exclusive promotions were at ‘regular’ price for less than half that time. As such, it was 24% of the 70 products that Which? looked at in Tesco, and 34% of the 71 analysed items in Sainsbury’s.
- Nescafe Gold Blend (200g) at Sainsbury’s – Nectar price £6, regular price £8.10. But this had only become the price just two days before the Nectar price launched – before that, it was £6. The £8.10 ‘regular’ price placed it at £1.10 more than any other supermarket.
- Heinz Salad Cream (605g) at Tesco – Clubcard price £3.50, regular price £3.90. Its regular price had been £2.99 at Tesco for several weeks before it was increased to £3.90 just 22 days before the Clubcard promotion. It had only been at its ‘regular price’ for 14% of the previous six months.
Which? is now calling on both retailers to make sure every non-member price is genuinely reflected so that savings are meaningful.
Which? has a history of referencing retailer unit pricing schemes to the CMA. Please see Competition and Markets Authority Update on Groceries and Unit Pricing Published - Mills & Reeve (mills-reeve.com) Compliance concerns had been previously identified on unit pricing by the CMA, who called on the Government for reform in this area back in July. The CMA also wrote to those not fully compliant and expected them to make changes to address concerns or risk enforcement action.
Precision Breeding Bill discussed by FSA
There was a discussion on Precision Breeding at the Food Standards Agency FSA Board meeting on 20 September 2023
The purpose was to decide on aspects of the new process to regulate the use of precision bred organisms (PBOs) for use in food and feed.
Professor Susan Jebb, Chair of the FSA provided the FSA position that PBOs present no inherent additional risk when compared to traditionally bred organisms. However, because the technology is new and constantly developing, the FSA believed it necessary to introduce regulation to provide oversight and safeguards for public health.
The Chair noted that the new system should be sufficiently flexible to respond to future scientific developments and agile enough to keep pace with innovation.
A two-tiered approach to regulation would encompass applications with
- minor changes that might mirror those from traditional breeding (Tier 1), and
- those where the changes could significantly alter the nature or composition of the consumed product (Tier 2).
The Board agreed that Tier 1 applications should be notified to the FSA so they can be included on the public register. It was further agreed that, just as for other food authorisation regimes, the food business should be responsible for understanding their legal obligations and ensuring that products are submitted for authorisation under the correct process. For PBOs, businesses must notify the FSA if their product is a lower-risk, Tier 1 PBO, using criteria set by the FSA. The FSA will then authorise the product.
Tier 2 PBOs, which may be higher risk, must go through an FSA risk assessment.
In all cases, businesses must have the necessary information and evidence to understand any safety risks.
The Board also supported proposals for an enhanced public register of PBOs to provide as much information as is reasonable and useful to consumers, to aid external scrutiny and allow monitoring of the evolution of PBOs in the market.
They emphasised that businesses need to be able to keep track of the PBOs that they were using in their products, encouraging discussion with stakeholders who had expressed concerns.
The Precision Breeding Bill is only in respect of England however the FSA understood it will impact the devolved countries and a regular dialogue should be maintained.
The FSA expects to launch a formal public consultation in November, to give consumers, enforcement authorities, and industry the chance to provide written comments on draft proposals and legislation.
The FSA paper can be found at View PDF (food.gov.uk).
The next FSA Board meeting will take place in Bristol on 13 December 2023.
ASA Rulings – Social Responsibility
- National press
- 20 September 2023
A national press ad suggested that participating in a lottery could be a solution to financial concerns.
The CAP Code stated that marketing communications must not suggest that participating in a lottery could be a solution to financial concerns.
The ad featured a story about a couple called Craig and Angie who were able to resume their wedding plans after winning a sum of money in the People’s Postcode Lottery.
- Social media (paid ad)
- 20 September 2023
A paid-for Instagram post featured a model who appeared unhealthy thin and was irresponsible.
Maje S.A.S t/a Maje Paris said they worked with models with diverse body types, and they provided images of several female models. They were mindful of the importance of responsible advertising and the dangers of featuring unhealthily thin models.
Maje said the model featured in the ad was not presented in a way that made her appear underweight and did not promote an unhealthy body image.
The model was featured sitting on a bicycle with her arms resting on the handlebars. The ASA considered the model’s slouched posture on the bicycle and styling, with her hair partially obscuring her face, gave a gaunt appearance and emphasised her slimness in a manner which made her appear unhealthily thin. For those reasons they concluded the ad was irresponsible.
- National press
- 20 September 2023
An ad in a magazine featured a model who appeared unhealthy thin and was irresponsible.
They held evidence demonstrating that the featured model’s BMI fell within a healthy range. In the image, she wore a UK size eight jacket with UK size ten shorts. Her clothing had not been adjusted on set, nor had the image been digitally altered. Because they regarded those sizes as standard, they believed it would be incorrect to suggest that the model’s natural slimness was unhealthy.
The ASA considered that styling and her pose, which stretched out her torso, drew particular attention to the very narrow silhouette of her exposed midriff and waist, as well as to their angular intersection.
The ASA understood the model was wearing UK size 10 shorts and that she had a healthy BMI. They acknowledged medical opinion provided the model was healthy. However, it was held the ad’s audience did not have information about the model’s clothing size or BMI, and would not view the model’s appearance from the same perspective as a medical professional. Because the pose and styling strongly emphasised the model’s narrow waist, the ASA considered the ad gave the impression that the model was unhealthily thin and concluded it was irresponsible.
- Social media (influencer or affiliate ad)
- 20 September 2023
A TikTok ad for alcohol on Charly Anne Collard’s account was not immediately identifiable as an ad, was not appropriately targeted, irresponsibly condoned excessive drinking and featured individuals under the age of 25.
The ad must not appear again in the form complained of. The ASA told Global Brands Ltd and Charly Anne Collard to ensure their ads were obviously identifiable as such, for example by including a clear and prominent identifier, such as “ad”. They also told them to ensure that ads for alcohol did not encourage excessive drinking or unwise drinking styles and to ensure alcohol was not featured being handled or served irresponsibly. The ASA also told Global Brands and Ms Collard to ensure that ads were appropriately targeted and that ads for alcohol did not feature individuals who were, or seemed to be, under 25 years of age.
- Website (paid ad)
- 20 September 2023
A paid-for ad on a newspaper website portrayed a child in a sexualised way and was harmful and socially irresponsible.
The product in question was a nursing mannequin nonetheless, advertisers recognised the risk of the ad causing confusion or disturbance to certain audiences. They stated that the ad had potentially been placed on their behalf by a third-party ad network that generated and displayed ads on other websites via the algorithmically driven selection of product listings on their site. They explained that the advertised product had been listed on their platform by a third-party seller and that they were not otherwise involved in its sale or manufacture.
Associated Newspapers Ltd t/a Daily Mail, the ad’s publisher, stated that the ad was served on their website programmatically. After receipt of the complaint, they took steps to prevent the ad reappearing on their site and added Alibaba.com to their list of blocked advertisers. They confirmed that no readers had complained to them directly.
The ASA understood that the advertised product was an infant nursing mannequin specifically designed for medical training. However, they considered that, in general, consumers would be unfamiliar with such mannequins and, in the context of a news website, consumers would not expect to served ads for medical training devices. The ASA further considered that impression was likely to be reinforced by the image’s juxtaposition with images of other products that had connotations of sex and violence.
This underlines the importance of context and also the need for checks on ad listings particularly where third parties and ads being promoted algorithmically or via computer programmes.
The Portman Group Upholds complaints on socially irresponsible packaging
Industry watchdog the Portman Group has upheld complaints against Tiny Rebel Brewing Co for its "flagrant" and "socially irresponsible" marketing for selling beer packed to mimic a Prime hydration drink popular with children.
The Portman Group is the self-regulator for the marketing and promotion of alcoholic drinks in the UK. They administer the Code of Practice on the Naming, Packaging, and Promotion of Alcoholic Drinks and the Code of Practice on Alcohol Sponsorship. Code-of-Practice-on-the-Naming-Packaging-and-Promotion-of-Alcoholic-Drinks-Sixth-Edition.pdf (portmangroup21.wpenginepowered.com)
The Code is supported throughout the industry. There are over 150 Code signatories including producers, importers, wholesalers, retailers and trade associations.
Each Code signatory has agreed to:
- Be bound by the provisions of the Code.
- Support the decisions of the Independent Complaints Panel and to not stock any products falling foul of the Code.
- Accept that details of complaints will be published and made available to Government, interested parties, the media and the general public.
The Code seeks to ensure that alcohol is promoted in a socially responsible way, only to those aged 18 and over, and in a way that does not appeal particularly to those who are vulnerable. The Code has helped create an industry that works effectively within the context of a self-regulatory model
Formal complaints are adjudicated on by the Independent Complaints Panel (Panel) and formal rulings are published on the Portman Group website.
Complaints against four Tiny Rebel products – Hywl, Monstar, TinyFast and Primed – were upheld by the alcohol industry’s Independent Complaints Panel (ICP). Copies of the full decisions are available here, here, here and here.
All products were upheld as having breached Code rule 3.2(f) for encouraging irresponsible consumption, and Code rule 3.2(j) in varying degrees for suggesting that the products had therapeutic qualities, could enhance mental or physical capabilities, and change mood or behaviour.
Monstar, TinyFast and Primed were also upheld under Code rule 3.2(h) for having a particular appeal to under-18s. As part of its consideration under the rule, the Panel considered that the appearance of Tiny Rebel’s logo could sometimes be a compounding factor when determining a product’s overall appeal to children depending on its size, presentation and contextual appearance. The Primed, TinyFast and Monstar decisions clarify this application in context, while the more mature adult design such of Hywl reflects how the logo may be appropriately used.
TinyFast also fell foul of Code rule 3.2(g) which states that a product should not urge a consumer to drink rapidly.
All four products have been discontinued.
Tiny Rebel Brewing Co responded “As code signatories and an alcohol producer we take our responsibilities very seriously, and have now started to use The Portman Group’s advisory service to sense-check our marketing campaigns as well as can designs.”